Houston v. McClure

CourtSupreme Court of Alabama
Writing for the CourtFAULKNER; TORBERT
Citation425 So.2d 1114
Decision Date28 January 1983
PartiesMarseille HOUSTON and Elaine Houston v. John T. McCLURE and Christine McClure. 81-652.

Page 1114

425 So.2d 1114
Marseille HOUSTON and Elaine Houston
v.
John T. McCLURE and Christine McClure.
81-652.
Supreme Court of Alabama.
Jan. 28, 1983.

Page 1115

M.A. Marsal and George L. Simons, Mobile, for appellants.

John D. Richardson and David F. Daniell of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellees.

FAULKNER, Justice.

Marseille and Elaine Houston appeal from a summary judgment granted in favor of John T. and Christine McClure and against them for specific performance of a contract to convey real property. We reverse.

Briefly, the facts are as follows: In July 1981, the McClures entered into several discussions with the Houstons concerning a waterfront lot located on Dauphin Island in Mobile County, Alabama. The lot is more specifically described as Lot 12, Block 1, Aloe Bay Addition. On July 9, the Houstons and the McClures agreed on the terms of the sale of the lot. The McClures were to pay the Houstons the sum of $10,000.00 at the time of the sale and an additional and final payment of $10,000.00 on December 15, 1981.

On July 10, the McClures delivered a cashier's check to the Houstons for the initial payment of $10,000.00. The Houstons accepted the check and executed a written document acknowledging the receipt of the check as a deposit from the McClures on the sale of the property. The text of this document appears in the record as follows:

"July 10, 1981

"Received from John T. and Christine McClure ten thousand dollars deposit on Lot 12 Block 1 Aloe Bay Addition balance due on December 15, 1981, Oil right not been sold."

During the next three days, July 11 through 13, 1981, the McClures went on the property, cut the grass, cleaned the grounds, and added onto an existing pier. The work on the pier consisted of the following: The McClures hired a Mr. Evans to drive two pilings and Mr. McClure added two stringers and some deck boards. The McClures paid Mr. Evans a total of $204.00 for one of the pilings and for his services. The other piling was already on the property. The McClures also placed two diesel fuel tanks on the property.

On July 14, 1981, Mr. Houston told Mr. McClure that he had changed his mind about selling the lot. Mr. Houston tried to return the cashier's check to the McClures, along with a check for the improvements, but the McClures refused to accept both

Page 1116

checks. The Houstons then ordered the McClures to remove the fuel tanks and posted "no trespassing" signs on the property.

The McClures on August 3, 1981, filed a complaint seeking specific performance of the contract. The Houstons filed a motion to dismiss the complaint, but the motion was denied. The Houstons' filed their answer on January 26, 1982.

On January 27, 1982, the McClures filed a motion for summary judgment based upon the pleadings, the affidavits of John T. McClure and Christine McClure, and the deposition of Marseille Houston. The Houstons filed a motion in opposition to the McClures' motion for summary judgment. The Houstons' motion in opposition was based upon the pleadings, the affidavits of Marseille and Elaine Houston, and the deposition of John T. McClure.

On March 9, 1982, the trial court granted the McClures' motion for summary judgment and ordered the Houstons to convey the property to the McClures. The Houstons filed a motion to reconsider and set aside the order, but the motion was denied. On April 6, notice of appeal was filed. The trial court's order of March 26 was received in the register's office on May 3 and the judgment was entered and filed on that date. The Houstons refiled their notice of appeal on May 10,...

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38 practice notes
  • Hornsby v. Sessions
    • United States
    • Supreme Court of Alabama
    • September 19, 1997
    ...material fact and that the defendants are entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; see, Houston v. McClure, 425 So.2d 1114 In reviewing a summary judgment, an appellate court looks at the same factors that the trial court considered in ruling on the motion. Tolbe......
  • Holman v. Childersburg Bancorporation, Inc.
    • United States
    • Supreme Court of Alabama
    • December 6, 2002
    ...of the `part performance exception' to the requirement of a writing in land sales contracts was addressed in Houston v. McClure, 425 So.2d 1114 (Ala.1983). In that case, we reversed a summary judgment entered in a specific performance suit because there was a factual issue as to whether the......
  • Moesch v. Baldwin County Elec. Membership Corp.
    • United States
    • Alabama Court of Civil Appeals
    • October 2, 1985
    ...fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), Alabama Rules of Civil Procedure; Houston v. McClure, 425 So.2d 1114 (Ala.1983). Defendant, as the party moving for summary judgment, has the burden to clearly show that plaintiff cannot recover under any disc......
  • McLeod v. Wilson
    • United States
    • Supreme Court of Alabama
    • January 20, 1984
    ...issue of a material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Houston v. McClure, 425 So.2d 1114, 1116 (Ala.1983). Where there is a scintilla of evidence supporting the position of the nonmoving party, however, a summary judgment is inapp......
  • Request a trial to view additional results
38 cases
  • Hornsby v. Sessions
    • United States
    • Supreme Court of Alabama
    • September 19, 1997
    ...material fact and that the defendants are entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; see, Houston v. McClure, 425 So.2d 1114 In reviewing a summary judgment, an appellate court looks at the same factors that the trial court considered in ruling on the motion. Tolbe......
  • Holman v. Childersburg Bancorporation, Inc.
    • United States
    • Supreme Court of Alabama
    • December 6, 2002
    ...of the `part performance exception' to the requirement of a writing in land sales contracts was addressed in Houston v. McClure, 425 So.2d 1114 (Ala.1983). In that case, we reversed a summary judgment entered in a specific performance suit because there was a factual issue as to whether the......
  • Moesch v. Baldwin County Elec. Membership Corp.
    • United States
    • Alabama Court of Civil Appeals
    • October 2, 1985
    ...fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), Alabama Rules of Civil Procedure; Houston v. McClure, 425 So.2d 1114 (Ala.1983). Defendant, as the party moving for summary judgment, has the burden to clearly show that plaintiff cannot recover under any disc......
  • McLeod v. Wilson
    • United States
    • Supreme Court of Alabama
    • January 20, 1984
    ...issue of a material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Houston v. McClure, 425 So.2d 1114, 1116 (Ala.1983). Where there is a scintilla of evidence supporting the position of the nonmoving party, however, a summary judgment is inapp......
  • Request a trial to view additional results

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